Casey v. Smith
| Decision Date | 07 August 1915 |
| Docket Number | 3595. |
| Citation | 153 N.W. 918,36 S.D. 36 |
| Parties | CASEY v. SMITH et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Butte County; William G. Rice, Judge.
Action to quiet title by William P. Casey against Louis D. Smith and others. From a judgment for defendants and an order denying new trial, plaintiff appeals. Affirmed.
Orville Rinehart, Robert Burton and Schrader & Lewis, all of Rapid City, for appellant.
A. J Plowman, of Deadwood, for respondents.
This action is brought to determine adverse claims to a quarter section of land in Butte county. Plaintiff, through one chain of title, claims to be the owner in fee of the entire tract defendants Smith, Sandusky, and Barsball, claim to be owners in fee through another chain of title; and Beresford and Sorenson are made defendants because of certain mortgage liens, on various portions of the tract involved, claimed by them. The land was patented under the homestead laws of the United States. The patentee conveyed the land to one Fargo by deed dated May 2, 1893, and Fargo quitclaimed to plaintiff on the 11th day of March, 1911. Defendants' title is derived through a sheriff's sale made under an execution issued upon a judgment in favor of one Goldberg and against the said patentee. This judgment was docketed in Butte county on the 7th day of March, 1890. The patent to the land was not issued until April 13, 1891, so that the debt upon which the judgment was entered accrued and existed prior to the issuance of the patent, and it is plaintiff's theory that, because of section 2296, Rev. St. U.S. 1878 (U. S. Comp. St. 1913, § 4551), said judgment was not a lien upon, and did not authorize a sale of, the said land. Said section reads as follows:
"No lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor."
Neither Goldberg (the grantee in the sheriff's deed) nor the said Fargo ever occupied or were upon the land, and the same was vacant and unoccupied from about the month of January, 1891, until the 1st day of March, 1901, when the said Goldberg conveyed, by warranty deed to one Sorenson, who went into the actual possession of said land on that date, and he and his grantees (these defendants), except the mortgagees, remained in the actual possession thereof from that date until the commencement of this action, which was on March 30, 1911.
Respondents, among other defenses, pleaded the statute of limitations contained in section 66 of the Code of Civil Procedure, and, if the case is governed by the provisions of that statute, it will dispose of the case, and it will be unnecessary to examine the other defenses.
It will be remembered that Sorenson went into the possession of the disputed premises on the 1st of March, 1901. At this time, and for several years prior thereto, Fargo was claiming the land under the deed from the patentee. It is not necessary, so far as the statute under consideration is concerned, to inquire just when Fargo's right of action accrued. It certainly existed when Sorenson went into possession of the land, and the full ten years specified by the statute elapsed before appellant acquired his interest. The only question, then, under this branch of the case is whether this case falls within the class of actions provided for in section 66 of the Code of Civil Procedure; in other words, should this action be denominated as legal or equitable? That the distinction between legal and equitable actions still exists is conceded by both parties; and it is conceded by appellant that, if this is an equitable action, the statute applies, and the action is barred thereby. To determine this question it is necessary to examine the allegations of the complaint and reply of the plaintiff, the answer of the defendants, and the relief demanded by both parties.
In his complaint plaintiff alleges that he is the owner in fee simple of the land in controversy, and is entitled to the possession thereof, and that the defendants claim an estate or interest adverse to plaintiff, and are in the actual possession thereof, and wrongfully withhold the same from plaintiff; and in his prayer he requires all of the defendants to set forth their claim, if any they have, and that the same be determined, that plaintiff be adjudged to be the owner of said premises in fee simple, free from all claims of the defendants, and that plaintiff is entitled to the possession thereof. In their answer defendants set out their claims are required to do by plaintiff and the source from which they derive their title. They set out the Goldberg judgment, the execution sale, and issuance of the sheriff's deed to said Goldberg. They set out the conveyance from Goldberg through the said Sorenson to themselves, the execution of the various mortgages, and pray that title be quieted in them.
To this answer plaintiff interposed a reply, in which he alleged that the said judgment was irregular, null, and void; that it had never been attested and entered, and that it had never become a lien upon said premises; that no sufficient notice of the execution sale had been given, and that the sale had never been confirmed. He further alleges that the debt upon which said judgment was obtained was contracted prior to the issuance of the patent for the said land, and that for that reason said judgment never became a lien upon said land, and that the same was not liable...
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